“Stable” Availing SOA
The so-called "stable" availing refers to the possibility for a company to obtain the SOA certification—required to participate in public procurement tenders—by continuously relying on the requirements (technical, economic, financial, and organizational) of another company with which it has a stable control relationship pursuant to Article 2359, paragraphs 1 and 2, of the Italian Civil Code. In practice, this is a form of availing that is not limited to a single tender (as per Art. 104 of Legislative Decree 36/2023), but pertains to a stable and lasting organizational relationship between the involved companies.
The control relationship means that the companies are bound by direct or indirect corporate control (e.g., one controls the other, or both are controlled by a common “parent” company). This relationship must be documented and declared to the SOA during the evaluation process for obtaining or renewing the certification.
Furthermore, to obtain SOA certification through stable availing, the auxiliary company undertakes to make available to the aided company, for the entire duration of the certification’s validity, the necessary resources and means. This commitment must be formalized through a contract (or a declaration) that specifies the requirements being provided. This structure allows for the combination or pooling of the requirements held by the related companies, enabling the aided company to qualify with enhanced technical and economic-financial capacity due to this stable relationship.
This mechanism is governed by Art. 104 of the Public Procurement Code (Legislative Decree 36/2023), and specifically by Article 26 of Annex II.12 of the same decree, with particular reference to Article 2359 of the Civil Code for identifying the control relationship.
In summary:
- The stable SOA availing allows companies with a stable control relationship (as per Art. 2359 of the Civil Code) to obtain SOA certification cumulatively.
- The auxiliary company formally commits to providing the aided company with the necessary resources and means for the entire duration of the SOA certification.
- This is a form of availing that goes beyond a single tender and is based on a stable inter-company relationship.
- This solution facilitates related companies in strengthening their ability to participate in public tenders, ensuring broader compliance with requirements, while respecting the prohibition on joint participation in the same tender.
These elements are necessary to ensure that the SOA can verify that stable availing is not merely a document-based transfer, but a concrete and lasting provision of business organization (means, resources, technical and financial-economic capacity), allowing the aided company to properly qualify for obtaining or renewing SOA certification.
Article 26 – Annex II.12 of Legislative Decree 36/2023
Availing Contract in Tenders and Qualification via Availing
- For qualification in a tender, the contract referred to in Article 104 of the Code must explicitly, fully, and clearly include:
a) Object: the resources and means provided, clearly and specifically;
b) Duration;
c) Any other useful elements relevant to availing. - To obtain qualification certification via availing, the aided company must submit to the SOA a declaration in which the auxiliary company undertakes the obligation to provide the availed resources to the aided company for the entire period of validity of the SOA certification issued through availing.
- For the purposes of paragraph 2, the auxiliary and aided companies must document to the SOA the control relationship between them under Article 2359, paragraphs 1 and 2, of the Civil Code, and must notify both the SOA and ANAC within fifteen days if such relationship ceases, or if conditions arise that terminate the provision of the resources described in paragraph 2.
- Within the next fifteen days, the SOA shall notify ANAC of the information referred to in paragraph 3 and shall revoke the aided company’s certification within the same time frame.
- The aided company, in order to qualify through availing, must possess:
a) The requirements under Article 18, paragraph 1, on its own;
b) The requirements under Article 18, paragraphs 5 to 25, also through the requirements provided by the auxiliary company. - The aided company is subject to all obligations applicable to companies certified by SOAs under the provisions of this annex.
- SOAs certify aided companies using a specific certification model prepared and approved by ANAC, which expressly refers to availing.
CREDITS: arch. Sara Iori